FCC Gets ’Em at “Hello”

WASHINGTON: Two broadcasters owe $20,000 for airing telephone calls without first obtaining permission from the folks on the call. WSKQ-FM of New York received a $16,000 fine for pretending to be a hospital, calling a woman and saying her husband had been killed in a motorcycles accident. In the second instance, WAAW-FM of Williston, S.C., was fined $4,000 for a call made to a local airport.

In the first case, David Oxenford of Davis Wright Tremaine LLC notes that “The FCC refused to reduce or eliminate the fine because the call was made by an independent contractor, as the commission found that the contractor had been hired to provide recorded ‘bits’ for the station, and was thus not acting outside of any limits set by the licensee. The decision also made clear that the violation occurs as soon as the person at the other end says ‘hello,’ if a recorder is running, even if the person being recorded subsequently consents to the broadcast of the call.”

In the second case, Oxenford said “the FCC would not eliminate the fine based on the fact that the station employee making the call had immediately identified himself as being from the station.... The FCC rejected this argument for two reasons. As the call was immediately put on the air, the decision found that once the ‘hello’ was broadcast without prior permission, the station had violated the rules.”

The rule by which a call can be broadcast if a person “can reasonably be expected to know” that it will only applies to people who originate the call in the first place, he said. The FCC also rejected a First Amendment newsgathering defense from the station.

“The decision found that the FCC had weighed the privacy rights of individuals not to be broadcast on the air versus the station’s interest in covering the news in adopting its rules in this area, and thus found that there was no First Amendment issue,” Oxenford wrote.

His entire analysis is available at Davis Wright Tremaine’s BroadcastLawBlog.